As crazy as it sounds, you could in fact, be arrested for driving under the influence of Listerine, Nyquil, a few sips of a cocktail, or any other liquid or substance that contains alcohol. It's not that you would necessarily be “under the influence” of any of these, but that they are all capable of producing an illegal blood alcohol concentration of 0.08% or greater.
The reason this is possible is due to a condition known as mouth alcohol. Mouth alcohol is alcohol that remains in the mouth. When present, mouth alcohol can fool a DUI breath testing instrument. And although it typically dissipates quickly, it can linger, depending on the circumstances.
For example, the limited amount of alcohol that could be “burped” into a “normal” mouth will probably dissolve quickly. But that same amount of alcohol burped up by someone with dentures, for example, may take longer to dissolve.
Similarly, if someone had a tiny piece of alcohol-saturated bread trapped in his/her dental work, that alcohol could remain in the mouth for quite some time.
Regurgitation, acid reflux, GERD, and heartburn are notorious for causing a continuous flow of alcohol to the mouth…alcohol that indefinitely remains in the mouth.
It is important to understand that the “alcohol” in mouth alcohol doesn't have to be from heavy drinking, nor does it even have to be from an alcoholic beverage…hence the title of this article. It can be caused by any amount of alcohol that enters the mouth and masks the type of deep lung air that a California DUI breath testing device is designed to capture.
This is why we say that mouth alcohol can fool a DUI breath testing instrument…it disguises itself as deep lung air. So while your reported BAC may be a 0.12%, your true BAC may only be a 0.06%. And supported by a significant number of studies, mouth alcohol is a difficult DUI defense to ignore. (See our article, "Can a California DUI conviction be removed from my record?")